Wade v. Brady

• Decision Date: 30 April 2009
• Docket Number: Civil Action No. 04cv12135-NG.
• Citation: 612 F.Supp.2d 90
• Parties: Robert WADE, Plaintiff, v. Bernard F. BRADY, Thomas F. Reilly, and Timothy J. Cruz, Defendants.
• Court: U.S. District Court — District of Massachusetts

612 F.Supp.2d 90

Robert WADE, Plaintiff, v. Bernard F. BRADY, Thomas F. Reilly, and Timothy J. Cruz, Defendants.

Civil Action No. 04cv12135-NG.

United States District Court, D. Massachusetts.

April 30, 2009.

Janet H. Pumphrey, Lenox, MA, for Plaintiff.

Randall E. Ravitz, Eva M. Badway, Office of the Attorney General, Boston, MA, for Defendants.

MEMORANDUM AND ORDER RE: MOTIONS FOR SUMMARY JUDGMENT

GERTNER, District Judge:

I. INTRODUCTION

Robert Wade ("Wade") brings this action under 42 U.S.C. § 1983 to vindicate his due process right to access certain biological evidence post-conviction. He aims to subject that evidence to DNA testing and use the results, which he believes will be exculpatory, to challenge his felony murder conviction. In 2006, I held that there was a Due Process right to postconviction access to biological evidence under certain circumstances and that Wade had properly stated a claim. I said:

DNA testing is different. Because DNA testing can exonerate the defendant, the government may only legitimately deny access to testing if it has a compelling reason to do so. To hold otherwise would subordinate the pursuit of justice to an arid obsession with procedure. Where DNA evidence can prove that a miscarriage of justice was perpetrated by an earlier verdict, our interest in fundamental fairness and the integrity of the criminal justice system require that DNA testing be allowed. Because I find that a Due Process right to DNA testing does exist, I hereby deny defendants' motion to dismiss.

Wade v. Brady, 460 F.Supp.2d 226, 231 (D.Mass.2006) ("2006 Order").

At the time, I left open key questions about the accrual of the statute of limitations, the legal standard for when testing must be ordered, and whether Wade can meet that legal standard. As both Wade and the defendants have moved for summary judgment, I now resolve those issues.

As explained below, the most sensible approach to the statute of limitations is to view the first denial of a request for access to evidence—whether by the prosecutor or the court—as the triggering date for accrual. Here, prosecutors refused to turn over the relevant evidence without a court order; the superior court then denied Wade's first motion for access on July 29, 2003. His § 1983 complaint (dated October 11, 2005) relates back to his habeas petition (dated October 8, 2004), which was filed well before the expiration of the applicable three-year limitations period. Thus, this action is timely.

As to the nature of the legal standard, confronted with untenable suggestions from both sides—Wade's proposal too permissive, the defendants' virtually prohibitive—I adopt a middle course followed by other courts: The due process right attaches when there is a reasonable probability that DNA testing would, if favorable, allow the prisoner to prevail in an action for post-conviction relief. Applying this standard to the instant case, I GRANT summary judgment for Wade.

I emphasize that the result in this case is somewhat anomalous because of the way in which Wade was charged. While the circumstantial evidence suggests Wade may have been involved in some sort of attack on the victim, the grand jury indicted and a jury convicted on the theory of felony murder with a predicate offense of rape. Wade seeks to conduct DNA testing of forensic evidence collected from the victim in an effort to cast doubt on the rape theory and in so doing, undermine the felony murder conviction. Where testing could have such a profound impact on the basis for a prisoner's confinement, Due Process—let alone the minimal requirement of fairness—requires that it be granted.

II. FACTS

With an IQ of 72, Wade is borderline mentally retarded. In 1993, he worked as a farmhand in Lakeville, Massachusetts, and lived in a small cabin on his employer's property. The employer also lived on the property and shared his residence with his 83-year-old mother, who suffered from an advanced form of Alzheimer's Disease.

On October 24, 1993, the employer discovered his mother in Wade's cabin bedroom naked, beaten, and barely conscious. Wade, also naked, was in the bedroom with her. According to the employer, Wade said by way of explanation, "she came to me." The mother had suffered a fractured wrist and hip, a scratch above her eye, red marks around her neck consistent with choking, and abrasions on her hands, shoulders, knees, and buttocks.¹ Her clothes were soiled with dirt, and the back of her brassiere was torn. The employer left the cabin for a period of time; as he departed, he heard Wade say to the mother, "see all the trouble you got me into." Wade then helped the employer retrieve a wheelchair from elsewhere on the property, which they used to move the victim to the main house before calling the police.

Two days later, the victim received hip replacement surgery. Four days after she was initially brought to the hospital, she developed respiratory problems that led to pneumonia. Although her condition improved for a short period, she died on November 13, 1993. An officer later testified that when he asked her in the hospital "who did this to you?" she answered "it was the man out back ... Bob."

Law enforcement authorities took a vaginal swab and smear, both of which revealed the presence of semen, and collected fingernail scrapings as part of the rape kit. A forensic pathologist later testified that Wade could not be excluded as the source of that semen. Authorities also obtained a semen and blood-stained cutting from the crotch of the woman's pants. Serology tests revealed the presence of H and A antigens on that section of clothing. Both Wade and the victim were type-O blood secretors, whose blood yields only H antigens when serologically tested. The presence of A antigens therefore suggested the involvement of a third party. At trial, Wade's statement, "I could not get a hard on.... Nothing happened," was admitted. In addition, Wade's psychologist testified at a state post-conviction hearing that Wade reported consuming three bottles of wine and eighteen beers the day of the incident, as evidence that he had been unable to perform sexually.

No DNA testing was performed on any of the samples taken from the victim. Wade has consistently maintained his innocence and insists that he never harmed the victim, despite being found in his cabin with her.

III. PROCEDURAL HISTORY

Wade was indicted on one count of aggravated rape, Mass. Gen. Laws. ch. 265, § 22, and one count of first degree murder, id. § 1, on December 6, 1993. During the trial, the Commonwealth presented serology evidence that could not exclude, but also could not definitively identify, Wade as the attacker. Trial counsel never sought DNA testing of this evidence before or during the trial. DNA test results had become admissible in Massachusetts state courts only one week prior to the beginning of Wade's trial. See Commonwealth v. Rosier, 425 Mass. 807, 685 N.E.2d 739 (1997). Instead, counsel elected to argue the defense of consent. The jury convicted Wade of aggravated rape and felony murder on September 8, 1997. He was sentenced to life imprisonment.

Wade filed notice of appeal on September 24, 1997, and retained new counsel. The Supreme Judicial Court ("SJC") affirmed his felony murder conviction, but vacated his conviction for the underlying predicate of aggravated rape as duplicative. See Commonwealth v. Wade, 428 Mass. 147, 155, 697 N.E.2d 541 (1998). Wade filed a petition for post-conviction relief on May 9, 2000, which was denied by the superior court on May 23, 2000.

On August 21, 2002, Wade retained yet another lawyer, who filed a motion in superior court for preservation of evidence. The court granted the motion on October 31, 2002. On December 9, 2002, Wade moved for DNA testing of the preserved physical evidence. He filed a motion for new trial based on ineffective assistance of counsel three weeks later. After a hearing, the superior court denied Wade's motion for DNA testing on July 29, 2003, concluding that his new argument of total innocence was at odds with his trial theory, the defense of consent. On August 13, 2003, Wade filed a motion for reconsideration, which was denied, as was his motion for new trial. A single justice of the Supreme Judicial Court then rejected Wade's petition for leave to appeal those decisions, without comment, on April 12, 2004.

On October 8, 2004, Wade filed a habeas petition before this Court, claiming ineffective assistance of counsel, which the defendants moved to dismiss. Wade next filed a motion to amend his habeas complaint on May 13, 2005. I granted the government's motion to dismiss the habeas petition on September 26, 2005, finding that Wade's ineffective assistance of counsel claim was procedurally defaulted because Wade had not shown "actual innocence" to overcome this default. At the same time, I granted Wade's motion to amend the complaint to raise a due process claim under § 1983, which Wade did on October 11, 2005. On October 27, 2006, I denied the defendants' motion to dismiss based on my finding that there exists a due process right to access evidence post-conviction for DNA testing where "DNA evidence can prove that a miscarriage of justice was perpetrated by an earlier verdict." See Wade v. Brady, 460 F.Supp.2d at 231.

IV. DISCUSSION

Both parties have now moved for summary judgment. Resolution of these motions depends on whether Wade has standing to bring this suit, whether his § 1983 claim was timely filed, the legal standard for when the due process right attaches, and whether Wade meets that standard. I address each question in turn.

A. Standing

In order for a plaintiff to bring suit in federal court, he must establish three elements: (1) injury in fact; (2) causation; and (3) redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). To establish injury in fact, a plaintiff must show that the actions or...